Extended Producer Responsibility, Producers, and Economic Operators = A whole greater than the sum

Introduction

The adjustable wrench, the spherical roller bearing and last, but not least, the three-point seatbelt: these are some Swedish inventions that have made people roll, improved (or saved) lives, and entered into the history books. But an invention that has had, and will continue to have, an equal impact on the mobility, energy storage, and commodities industries in the years to come is a principle rather than a physical product.

In the early 1990s Thomas Lindhqvist, former associate professor at Lund University, came up with the principle of Extended Producer Responsibility (‘EPR’). Based on the polluter pays principle, the concept of EPR determines that it is the producer who should be responsible for its product’s environmental impact. It means in theory that the producer should carry the burden regarding organizing and financing the waste management of its products. From packaging to vehicles and batteries, in the last 20 years the EU has implemented widespread legislation based on the principle of EPR to reach its goals of a circular economy and a sustainable environment.

Following the implementation of the Battery Directive in 2006, all Member States were required to set up national rules applicable to battery producer’s EPR. The new, landmark, Battery Regulation, takes this one step further. It is directly applicable in all Member States and outlines a framework for responsibilities for a battery’s subsequent life.

This blog, co-written by NORMA Law and Cling Systems, covers why compliance with, and understanding of, EPR is fundamental to the success of battery circularity and ensuring participants can access the supply and demand they need. Should you have any questions or enquiries that are prompted by this piece, please do get in contact with either author.

Who does the Battery Regulation apply to?

The Battery Regulations applies to actors who are considered “economic operators”, and the scope of the term is extensive. In principle, the concept encompasses all actors in the supply chain, manufacturers, importers and distributors, who are involved in the making and selling of batteries.

The definitions of manufacturers and importers provided by the Battery Regulation is fairly straightforward. However, the definition of the word “distributor” is less obvious as the concept has a wider meaning in the context of the Battery Regulation than how the word is commonly used.

A distributor according to Article 2(1)(65) of the Battery Regulation encompasses every natural or legal person in the supply chain, other than the manufacturer or importer, who makes a battery available on the market. As making a battery available on the market is defined as supplying a battery for distribution or use on the Union market due to commercial activity, whether in return for payment or free of charge, the definition comprises almost all actors in the supply chain who are not manufacturers or importers. In the eyes of the Regulation, an entity does not need to have possession of a battery to be considered a distributor.

What does this mean? There is no difference between brokering a deal involving batteries, and trading a battery that exchanges ownership from a seller to an intermediary and then to the buyer in this setting. Either way the entity is deemed as a distributor under the Regulation, and since it is regarded as distributor, it also is considered to be an economic operator.

Simply broking a deal, i.e. Matching seller and buyer without taking ownership, therefore needs appropriate expertise and compliance, just as much as an exchange of ownership.